Yasir Qadhi – The Ruling of Iddah The Waiting Period For a Spouse and Its Potential Abuse
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Today's khatira will be fiqhih with a tinge
of, politics, but I have to be generic
as I'll explain why.
We're gonna begin with a very basic overview
of a topic that everybody should know. It
is something that is a part of our
religion, and that is the reality of marriage
and divorce laws. We thank Allah that our
religion has told us everything we need to
know. Our religion is a holistic
complete religion. As Allah says in the Quran,
ma faratna afrikitabi misheyeh. There's nothing that is
left out. And everything we need to know
about how to live, how to eat, what
to eat, how to drink, how to get
married, when to get married, who can we
get married to, who can we not get
married to, and when can we divorce, how
can we divorce. The rules are all very
explicit in the Quran. And so, today, insha
Allahu ta'ala, we're gonna talk a little bit
about the reality of 1 of the aspects
that we should be all aware of, and
that is the issue of idah. What does
idah mean? Idah means to count. Adahu means
he counted it. And technically,
it is to count the time frame
between the ending of 1 nikah of a
lady and the beginning of a new nikah.
And this is something that the Quran has
been very explicit about. So the idah is
the time frame.
The idah is the interim period.
That when does 1 nikah end
and another nikah may begin, there is an
interim.
That interim, you count it. That interim is
called i'dah. And the Quran has given very
explicit rulings about the i'dah. And the ahadith
clarify these rulings. And of course, there's a
lot of wisdoms of why there is an
i'dah. The primary wisdom, it is common sense,
and that is lineage.
Children, we never want to mix up lineage
whose child belongs in the womb of this
lady. If you get married and then divorced
and then marry immediately after that, there's gonna
be a confusion whose child it is. But
there are other wisdoms as well of the
i'da. And our scholars mentioned, you know, many
of these wisdoms. But I need to make
a point here before we move on that
the average person a lot of times gets
confused between the wisdom of a ruling and
between the shar'i cause. The wisdom is called
the hikmah. The shar'i cause is called an
illah. The 2 are not the same. Why
is this? The wisdom
is generally present, but not necessarily.
And just because the wisdom is not present,
it doesn't change the ruling. The ruling is
not based on the wisdom. The ruling is
based upon the cause. Let me give you
a simple example you will under all understand,
insha'Allah.
We all know when we're traveling, what can
we do?
Qasr. What else can we do about fasting?
Not fast. We could we're not allowed we're
allowed to break the fast. Right? What is
the wisdom? It is obvious.
What is the wisdom?
When you're traveling, life is difficult.
So the wisdom,
Allah has made life easier
that you may do Qasr and you may
break the fast of Ramadan.
Now, suppose somebody says, oh, but I'm traveling
in an air conditioned plane. And in my
case, I don't. This wisdom is not found.
May He still break the fast? Yes or
no?
Yes. Why? Because the cause, which in Arabic
is called illah. The cause is present. So
to make it clear, the wisdom
generally is present.
But the ruling of Islam is based upon
not the wisdom, but
the cause. Is that clear? I'm giving this
as a general rule. You should be aware
of it in every case, whether it's idah,
whether it's any issue, whatsoever.
Now, this is not a detailed fiqh class.
Every student of fiqh will study the the
book of Talaq. And within the book of
Talaq, the biggest chapter within the book of
Talaq is 'idah. And so this is not
a fiqh class. I'm not gonna go over
all the details, but I do want you
to be aware of a very basic reality.
And that is the Quran has mentioned multiple
categories of Ida for multiple scenarios. And the
books of fiqh, it's their job to then
extrapolate
about those scenarios that are a bit more
rare, a bit more, you know, less common.
So what does the Quran mention? The Quran
mentions a number of iddas. The first iddah
is the iddah of the lady whose husband
has died. She becomes a widow. So this
is the idah of the mutawafaaanha
zujuha, the 1 whose husband dies. The idah
of the widowed lady. And Allah says in
the Quran that, waladina
yutawafoniminkum
waydrunaswajan
yathrabasnabi'anfusihinnaarbaataashhurin
waashrara. Very explicit.
Whoever amongst you dies
leaving behind a wife,
they must wait
4 months 10 days. This is the idah
of
the widow. Explicit in the Quran, there is
no controversy whatsoever. When a husband dies, then
the wife remains in a special type of
idah. Is called Ihdad. So it's a special
type of idah. Other rulings apply, which again,
is not the time to get into. I've
given a whole lecture about it. You can
find it online. So this is the idah
of the 1 whose whose husband dies. The
second category of iddah in the Quran is
the iddah of the divorced lady who has
lived with her husband. So she has had
a normal marriage. The 2 have been intimate.
They've had conjugal relations. And then for whatever
reason, the husband decides to divorce his wife.
In this case, Allah Subhanahu Wa Ta'ala says,
wal mutallakaato
yatharabaslabimfusinnathalathatakkuroo
The mutallaka,
The 1 who has been given divorce, they
must wait,
3 menstrual cycles.
They must wait 3 menses.
And it is not allowed for them to
hide if they are pregnant. Allah says in
the Quran. Wallayahillulahhunna
So the onus of the burden, the testimony
goes on the woman. It's in the clear
in the Quran. The
when when it is over, when the whether
she's pregnant or not. And Allah says it
is not allowed for the woman to be
quiet if she is pregnant, she has to
tell the husband or they Even if it's
an ex husband, she must tell the husband
that or the ex husband that she is
pregnant. So this is the second category.
Now, in case the woman has reached postpartum
I e, she is no longer,
menstruating or for whatever reason she has never
had menses. Allah says in the Quran, wallahi
isnaminamakhidimina
saikum minisaikum minisaikum minisaikum minir tabtumfaidatuhunna
thalathah to ashhur. In case the woman is
not menstruating,
she must wait 3 months.
So if she is menstruating, it is 3
menstrual cycles. And if she's not menstruating for
whatever reason, old age or she has a
medical issue, whatever it is, then it will
be 3 months. So this is second category
of idah, and that is the divorced lady
that has lived with her husband. The 3rd
category from the Quran,
the divorced lady who has not lived with
her husband, I e, it might happen. An
iqyah takes place and the husband, wife do
not live together. There's no intimacy. And for
whatever misunderstanding, whatever it might happen, then without
having lived together, they end up divorcing.
Right? In this case, Allah explicitly says in
the Quran that
in case you marry a woman, thummatalaktumuhunna
min ghayd and tamasuhoonna
famalaqumalayhinna
min idatintaata
dunaha.
If you divorce a lady without having touched
her, there is no idah that you must
do upon her. So there is no idah
for the 1 that even if anika takes
place, but the husband and wife have not
been together. Now pause here. Footnote, there is
a controversy between the scholars. What constitutes being
together? Is it actual intimacy, sexual relations, or
is it privacy? 2 madhab say privacy. Why?
Because we don't ask what happens. If there
were private, then we consider it to be
nikah and it's not befitting to ask what
did you do. Right? And 2 madhabs say,
no. No. It's intimacy. So if they went
privately somewhere, but they didn't have intimacy, they
will tell the witnesses and the wali that
we didn't we weren't intimate. And this is
aliktilaf amongst the madhabs. But there is agreement
that if they have lived together conjugally and
they have been husband and wife, then this
ruling does not apply. The only Ikhtilaaf, what
constitutes,
touching them? The Quran says, and you haven't
touched them.
Does it literally mean touch them,
or is there a metaphor
of conjugal relations? And this is a classic
controversy from the time of the Sahab and
Tabi. 2 madhabs here, 2 madhabs there. And
that's for the 1 who has the nikah
without intimacy or without privacy.
And then there's another category.
And this category is hotly debated amongst the
fuqaha. And this is the category of hula.
Khulah. What is khulah?
Khulah is when the wife says to the
husband, divorce me.
And she is willing to give something,
a partial mahar or the full mahar. Like,
for whatever reason, sometimes the husband wants to
divorce the wife. This is called palak.
What if the wife does not like the
marriage? And the wife says, I don't want
to remain married. So there is something called
khulah. And khulah means
the lady has given up something. Literally, Khala'a,
she has given something back. So she has
thrown something back at him. Basically, you may
take the Mahr back or you may take
whatever you negotiate.
She's allowed to negotiate partial Mahr, full Mahr.
The scholars say no husband should take more
than the Mahr. This is really really cheap
and demeaning.
But she may give full mahar. She may
give 70%. She may give 50%. Whatever it
is, it's on her. And in this case,
a khulah takes place. Now this is a
controversy in fiqh.
What is the idah of the 1 who
does khulah? You understand this question. Right? And
I will say 2 and a half of
the madhhabs. Why do I say half? Because
within 1 madhhab, there's even within the madhhab,
there's controversy. Okay. 2 and a half madhab
say it is the same as the Talaq.
And 1 and a half madhab actually says
it is 1 menstrual cycle or 1 month.
And this is the position of many of
the Hanbali scholars. Ibn Taymiy ibn al Qayyim
were very adamant they have their explicit evidences
for this. That when the lady
asks for a talaq
and the lady is the 1 who initiates
the talaq, this is called the khulah. And
when the khulah is done according to this
position, then it will only be 1 month
or 1 cycle. As I said, this is
a minority opinion. 1 madhab and a half
if you like. And the majority opinion, it
will still be 3 months like the rest.
And why this is the case is beyond
the scope of our, technical issue over here.
And then there's 1 final category, and that
is more complicated things, which we're not gonna
get into. If the nika was made fas,
null and void. If the nika was made
and this is technical terms. I just want
you to know, in each of these cases,
there's more controversy
and, you know, scholars will differ how much
i'da will be given. So this is a
more gray area. Now in case there is
ambiguity,
in case 1 follows, you know, 1 madhab
over the other, there is no question that
the Sharia would not impose any punishment in
a gray area. In a gray area like
this, there is no question. There is no
hadh penalty according to the sharia of a
misunderstanding
in this regard. And
even if it was confirmed
that 2 people did something unethically they shouldn't
have done, this will not constitute a head
penalty. This will constitute at max what is
called the tazir. And this is left to
this discretion of the, judge what should be
done, what is the permissibility,
or what is the maximum of tazir. Now
this is basic fiqh. And we all know
that in light of what is happening right
now, I'm not just discussing basic fiqh. We
have to get to the awkward reality of
something taking place in the world. But to
be fair, and wallahi, I'm doing this because
I have an iman in the eyes of
Allah. It is not appropriate for me or
anybody
to speak about a specific case
without knowing the details, yaqeenan.
And without knowing exactly what each party said
and without knowing the facts. And as Allah
is my witness, this is not because a'udhubillah,
I am scared of speaking the truth. I
have spoken the truth on many issues, but
it's not appropriate for any person of knowledge
to speak about a specific case definitively
without knowing the definitive facts. So because of
this, I will speak generically
without mentioning names, without mentioning countries. Not because
I'm scared of the criticism, the critic, but
because Amanah
and shari'a and even any court of law,
not even shari'a, any court of law will
say, if you don't know the facts definitively,
you have no right to make a definitive
verdict. So So because of this, I will
speak generically. But insha Allah, it's clear what
I am speaking generically even if I don't
mention, names or countries or details. So
first and foremost,
if 2 people have had a nikah done,
we have to ask what was the previous
nikah's ending? Was it a khulah?
Was it a fasq? Was it a talaq?
This is the first area of controversy because
each 1 will have a different iidah, and
each 1 will have different rulings apply. And
as we said, according to the different madhhabs,
some of the madhhabs, if it was initiated
on her side and she asked for a
khulah, some of the madhhabs would allow an
i'dah for 1 cycle,
1 1 menstrual or 1 month. If she
wasn't menstruating, will be 1 month. And if,
I'm just saying, if a person asked a
mufti and the mufti gave this fatwa,
no other madhab can imprison somebody
for following another madhab. You cannot
criminalize a legitimate area of difference. And we
don't know
who initiated the taraq. There's controversy in this
regard in this particular case. So this is
an area of ambiguity.
A second area of ambiguity,
if the husband and wife differed when exactly
the divorce was initiated. And 1 said, no.
No. This was the day. And the other
said, no. No. This was the day. In
this case, each testimony
is canceling the other. We would have to
get evidence from outside.
And in case there was no evidence from
outside,
no court can side with 1 against the
other because each testimony is canceling the other
out. So if you have a case of
differing, when did the talaq Even if we
say talaq. And 1 says, no, well, the
talaq took place this month. Other says, no,
talaq took place that month. Unless they bring
evidence,
once again, there is no question the Sharia
would not impose a penalty. There is no
penalty. This is an ijtihad of your memory.
And each memory is saying, oh, this versus
that. Another point, which is really in my
opinion, the most important point. And that is
even if it was verified
that this was the day, and even if
we know a talaq took place So both
of these are ambiguous in a particular case.
Even if we knew it's talaq, it's not
it's not khulah. And even if we know
the date, this is the most important point
in my humble opinion.
When it comes to menses
and when it comes to a woman's cycle,
the shari'ah is clear.
Who gives the testimony?
The lady.
The lady gives the testimony.
It is not
a man's business
to go demanding proof. Aoodhubillah
How disgusting is that? When did your menses
finish? This is not my opinion. This is
the unanimous consensus of the ulama of Islam.
And I have a whole bunch of quotes.
I don't need to quote them here. Ibn
Ba'tal said, Ittafaqoo
They have all agreed that when it comes
to the shahada of the hayl, the shahada
of giving birth, the shahada of the child,
the shahada of personal defects in a woman's
body, that the testimony of a woman counts,
not that of a man. We don't open
this door for a man. The Halafi scholar
Al A'ini said, Ittafakkoo.
It is allowed that the shahada of a
lady about the menses is taken. So when
a woman says her menses are over,
that's between her and Allah. If she's lying,
that's Allah's punishment on her. We cannot get
involved
and say, Oh, you have to prove to
me that your menses are over. Aoodhubillah.
Audubillah. Think about this. Right? When the lady
says, I have done 3 menses and I
am now allowed to get married. Then the
lady's testimony of when her menses finish, the
lady's testimony
will be definitive.
And no 1 has the right to challenge
this. And this is something all of the
madahib agree upon. And as I said, it's
even common
sense. Ask Wallahi, ask me. You ask yourself,
who's gonna get testimony? What type of testimony
are you gonna have? Prove to me that
your menses are over. It is against the
akhlaq of the sharia. We get involved in
something like this. When the lady says it,
Allah says in the Quran, it's not allowed
for you. Okay. This is between her and
Allah. This is a zajr, a harsh commandment.
Allah is saying to the lady, you had
better not lie. That's between her and Allah.
In case even if she lied,
the punishment is on her. We do not
get involved. And no court will demand from
her, you must prove your testimony. This is
between her and Allah Subhanahu Wa Ta'ala. And
the sharia requires
we take her testimony at face value. Especially
if she is not known to be a
liar, she has lived a pie Especially even
more so than we take her word and
we don't get involved in the details of
the nitty gritty of this regard. So
in reality,
generically speaking,
if a court case in the first time
of a country's history
becomes involved in the pettiness of she's wrong
in her menses or her idah didn't finish.
And for the first time in that country's
history, they take a high profile
politician or person, and they use the sharia
and some ambiguous
rulings to make some case against him. Wallahi,
we must point out from the sharari perspective.
We must point out this doesn't make any
sense. It doesn't make any sense from the
shari'a because of all these ambiguous reasons. We
don't know whether it was talah, whether it
was khas, whether it was khulah. We don't
know the exact date there is a difference
of opinion. We don't know
when the hadith finished and she says it
finished. Based on all of this, the Sharia
would rule, we take on face value. And
even if
even if a mistake occurred, this is not
a criminal mistake. We would say, okay, reperform
the nikah and do the nikah properly. There's
no criminality
involved over here. And so without a doubt,
when we find that there seems to be
Allahu Allah knows best, but there's clearly something
strange when this issue has never been problematized
in any other person in the entire country's
history. And now for the first time, you
find a prominent politician and you use something
like this to jail this person and the
person's spouse. With that without a doubt, we
say it appears it appears that you're playing
games with the Sharia. And you're using the
Sharia for your own personal vendettas.
And we must point out when you involve
the Sharia, it's our right to speak out
and defend the Sharia. Why? Because when you
misuse the Sharia, when you abuse the Sharia,
many things happen. 1st and foremost, you're making
a mockery of Islam.
Secondly, the non practicing Muslims, they themselves are
gonna feel weird. What is going on here?
Thirdly, the non Muslims will make fun of
our religion. They're gonna not understand this. And
fourthly, and most importantly,
you know, honestly, it's 1 thing you do
dhun, and that's bad enough. When you bring
in Allah to justify your dhun, wallahi you've
reached a different level. It's 1 thing you
do dloom, that's bad. It's 1 thing you're
unjust, that's bad. When you quote Allah
to justify the injustice,
now you have reached a whole different level
of dulm because now the dulm is not
just between you and the person. Now you
are justifying this dulm in the name of
Allah. And Allah Subhanahu Wa Ta'ala explicitly says
in the Quran, the biggest sins in the
Quran. Wa antashirku billahamaloo
malumidadabir sutanah wa antakuluallallahi
malataalamoon.
The biggest sins are shirk, and then to
speak about Allah with what you do not
know. And Allah says in the Quran, walataqululimatasifu
alsindukumul kadibahada halalumma aadahharamun
litafturaAllallall
kadib Do not falsely ascribe to Allah, this
is halal and this is haram. This is
iftira and slandering against Allah. And Allah says,
those who slander against me shall never be
successful.
So we clearly point out, we clearly point
out that if the Sharia is being used
to justify Dhulm, the Sharia is free of
that justification.
And the Sharia has nothing to do with
that justification.
And the onus, and the burden, and the
sin is on those who make a mockery
of the sharia, and attempt to use the
sharia to cover up their their own crimes.
Had they been criminal just between them and
the person, that will be bad enough, and
we can speak against that. But the minute
they bring in Allah, and they bring in
Sharia and they bring in Islamic law, then
our anger becomes even more. And we say,
clearly, you are using double standards. And it
appears that you are using the name of
Allah to justify your own personal vendettas. So
my appeal to those who are involved in
any such case around the world that they
should really fear Allah Subhanahu Wa Ta'ala. They
have reached a level of Dhulm where they're
justifying
a personal vendetta. If that is the case,
by using the name of Allah, this has
crossed a red line that there is no
coming back from unless they publicly repent and
they ask Allah's forgiveness. From my side, we
say the Sharia is free of the shenanigans
of those who misuse and abuse it. The
Sharia is a pure and beautiful code and
has nothing to do with this type of
random imprisonment for something over a personal
private matter between a woman and her menses
and cycle. The Sharia is not gonna get
involved much less imprison somebody of this nature.
So we say this is iftira and lying
against the Sharia and it has nothing to
do with the religion of Allah Subhanahu Wa
Ta'ala. We ask Allah Subhanahu Wa Ta'ala for
people around the globe to respect the Sharia
and to not use and misuse it for
their own personal issues. And Allah Subhanahu Wa
Ta'ala knows best which
is.